INDRA SA\VHNEY AND ORS. ETC. ETC. v. UNION OF INDIA AND ORS. ETC. ETC.

(7) Once a class of citizens is identified on correct principle as backward for the purpose of reservation, the "means test" must be strictly and uniformly applied to exclude all those persons in that class reaching above the predetermined ecomomic level.

(8) Reservation in all cases mast be confined to a minority of available posts or seats so as not to unduly sacrifice merits. The number of seats or posts reserved under Article 15 or Article 16 must at all times remain well below 50% of the total number of seats or posts.

(9) Reservation has no application to promotion. It is confined to initial appointment, whichever be the level or grade at which such appoint- ment is made in the administrative hierarchy, and whether or not the post in question is borne on the cadre of the service. F

(10) Once reservation is strictly confined to the constitutionally in- tended beneficiaries, as aforesaid, there will probably be no need to disappoint any deserving candidate legitimately seeking the benefit of reservation, for there will then be sufficient room well within the 50% limit for all candidates belonging to the backward classes as properly deter- G mined on correct principle. In that event, questions such as caste or religion will become merely academic and the competing maddening rush for "backward' label will vanish.

(11) A periodic administrative review of all affirmative action H

818 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A programmes, including reservation of seats or posts, must be conducted by a specially constituted Permanent Authority with a view to adjustment and readjustment of such programmes in proportion to the nature, degree and extent of backwardness. All such programmes must stand the test of . judicial review whenever challenged. Reservation being exclusionary in character must necessarily stand the test of heightened administrative and judicial solicitude so as to be confined to the strict bounds of constitutional principles.

(12) Whenever and wherever poverty and backwardness are iden- tified, it is the constitutional responsibility of the State to initiate economic and other measures to ameliorate the conditions of the people residing in those regions. But economic backwardness without more does not justify reservation.

{13) Poverty demands affirmative action. Its eradication is a constitu- tional mendate. The immediate target to which every affirmative action programme contemplated by Article 15 or Article 16 is addressed is poverty causing backwardness. But it is only such poverty which is the • continuing ill-effect of identified prior discrimination, resulting in back- wardness comparable to that of the Scheduled Castes or the Scheduled Tribes, that justifies reservation. E (14) While reservation is a remedy for historical discrimination and its continuing ill effects, other afirmative action programmes are intended to redress discrimination of all kinds, whether current or historical.

(15) Any legitimate affirmative action must be supported by a valid F classification based on an intelligible differentia distinguishing classes of citizens chosen for the protective measures from the generality of citizens excluded from such measures, and such differentia must bear a reasonable nexus with the object sought to be achieved, namely, the amelioration of the backwardness of the chosen classes of citizens, which implies a G reasonable proportion between the aim of the action and the means employed for its accomplishment, and its discontinuance upon the ac- complishment of the object.

(16) In the final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation as aforesaid, but by free

INDRA SAWHNEY v. U.0.1. [TIIOMMEN, J.] 819

medical aid, free elementary education, scholarships for higher education and other financial support, free housing, self-employment and settlement schemes, effective implementation of land reforms, strict and impartial operation of the law-enforcing machinery, industralisation, construction of roads, bridges, culverts, canals, markets, introduction of transport, free supply of water, electricity and other ameliorative measures particularly in areas densely populated by backward classes of citiznes.

CONCLUSIONS:

A. The validity of the impugned Government Orders providing for reservation of posts depends on convinc- C ing proof of proper identification of backward classes of citizens by recourse to' relevant criteria, such as poverty, illiteracy, disease, unhygienic living condi- tions, low caste and consequential isolation, and in accordance with correct principle, i.e., with reference to the continuing ill effects of historical discrimination resulting in social and educational backwardness com- parable to that of the Scheduled Castes m the Scheduled Tribes, and inadequate representation of such classes of citizens in the services under the State, but subject to the overriding condition tbat all those persons whose means have exceeded a predetermined economic level shall be denied reservation. Amongst the aforementioned backward classes of citizens cor- rectly identified to be qualified for reservation, preference may be legitimately extended lo the com- F paratively poorer or more disadvantaged sections.

B. Reservation of seats or posts solely on the basis of economic backwardness i.e., without regard to evidence of historical discrimination, as aforesaid, finds no justification in the Constitution. G

C. Reservation of seats or posts for backward classes of citizens, including tbose for the Scheduled Castes and the Scheduled Tribes, must remain well below 50% of the total seats or posts. H

820 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A D. Reservation is confined to initial appointment to a post and has no application to promotion.

E. It is open to the State to adopt any valid affirmative action programme, otherwise than by reservation, for amelioration of the disabilities of all disadvantaged persons, including backward classes of citizens.

Neither the impugned orders of the Government of India (O.M. No. 36012/31/90-Estt(SCT) dated 13th August, 1990 and O.M. No. 36012/31/90- Estt(SCT) dated 25th September, 1991) nor the material relied upon by it nor the affidavits filed in support of the said orders disclose proper application of mind by the concerned authorities to the principle stated above for valid identification of the backward classes of citizens qualified for reservation in terms of Article 16 of the Constitution of India. The impugned orders are, therefore, unsustainable. The respondent-Government is accordingly directed to reconsider the question of reservation contemplated by Article D 16(4) in the light of the aforesaid principle and pass appropriate orders.

ORDER

We have delivered onr separate judgments. In the light of the reasons stated by us, the impugned orders [O.M. No. 36012/31/90- Estt(SCT) dated E 13th August, 1990 and O.M. No. 36012/31/90 Estt (SCT) dated 25th September, 1991) issued by the Government of India are declared unen- forceable for want of valid identification of backward classes of citizens qualified for reservation under Article 16 of the Constitution of India. In the circumstances, we direct the Union of India to re-examine the question of identification of the backward classes of citizens in accordance with the F principle and directives contained in our respective judgments and pass appropriate orders providing for reservation under Article 16(4).

The above cases are disposed of accordingly. There shall be no order as to costs. G ANNEX URE

DR. AMBEDKAR'S SPEECH IN THE CONSTITUENT ASSEMB- LY ON 30.11.1948

H Now, Sir, to come to the other question which has been agitating the

INDRA SAWHNEY v. U.0.1. (THOMMEN, J.] 821 members of this House, viz., the use of the word "backward" in clause (3) A of Articie 10, I should like to begin by making some general reservation so that members might be in a position to ,understand the exact import, the significance and the neccessity for using the word "backward" in this particular clause . If members were to try and exchange their views on this subject, they will find that there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition B which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many members of this House that every individual who is qualified for a par- ticular post should be free to apply for that post, to sit for examinations and to have his qualifications tasted so as to determine whether he is fit c for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality of oppor- tunity. Another view mostly shared by a section of the House is that, if this principle is to be operative - and it ought to be operative in their judgment to its fullest extent - there ought to be. no reservations of any sort for any class or community at all, that all citizens, if therare qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists, that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time he a provision made for the·entry of certain communities which have so far been outside the administration. As I said, the, Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. If F honourable Members will bear these facts in mind - the three principles, we had to reconcile, - they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of Article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At lhe same time, as I said, we G had to reconcile this formula with the demand made by certain com- munities that the administration which has now - for historical reasons - been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to con· H

822 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A cede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of oppor- tunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to someting like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anyboday say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safegard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of com- munities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as ''backward" the exception made in favour of reservation will ultimately eat up the rule aliogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsiblity of introducing the word "backward" which, I admit, did not originally fmd a place in the fundamental right in the way in which it was passed by this Assembly. But I think honourable Members will realise that the Drafting Committee which has been ridiculed on more than one ground for producing sometimes a loose draft, some- F times something which is not appropriate and so on, might have opened itself to further attack that they produced a Draft Constitution in which the exception was so large, that it left no room for the rule to operate. I think this is sufficient to justify why the word "backward" has been used.

With regard to the minorities, there is a special reference to that in G Article 2%, where it has been laid down that some provision will be made with regard to the min.orities. Of course, we did not lay down any propor- tion. That is quite clear from the section itself, but we have not altogether omitted the minorities from consideration. Somebody asked me: "What is a backward c.ommunity"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 823

Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend Mr. T.T. Krish- namachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats; I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner. Mr. Krishnamachari asked : "Who is a reasonable man and who is a prudent man? These are matters of litigation". Of course, they are matters of litigation, but my honourable Friend, Mr. Krishnamachari will understand that the words "reasonable persons and prudent persons" have been used in very many laws and if he will refer only to the Transfer of Property Act, he will find that in very many cases the words "a reasonable person and a prudent person" have very well been defined and the court will not find any difficulty in defining it. I hope, therefore that the amendments which I have accepted, will be accepted by the House.

CONSTITUENT ASSEMBLY DEBATES, VOL. 7 ( 1948-49), pp. 701- 702. E **************

KULDIP SINGH, J, The Government action on the Manda! Report evoked spontaneous reaction all over the country. The controversy brought to the four important constitutional issues for the determination of this F Court. Nine-Judge Banch, specially constituted, has had a marathon-hear- ing on various aspects of Article 16 of the Constitution of India. There are five judgments, from Brother Judges on Mandal-Bench, in circulation. I have the pleasure of carefully reading these erudite expositions on various facets of Article 16 of the Constitution of India. I very much wanted to refrain from writing a separate judgment but keeping in view the impor- G lance of the issues involved and also not being able to persuade myself to agree fully with any of the judgments I have ventured to express myself separately. I may, however, say that on some of the vital issues I am in complete agreement with RM. Sahai, J. The historical background and the factual.matrix have been succinctly narrated by Brother Judges and as such H

824 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A it is not necessary for me to cover the same.

I propose to deal with the following issues in seriatim:

A. Whether "class" in Article 16(4) of the Constitution means "caste"? Can caste be adopted as a collectivity to identify the backward classes for B the purposes of Article 16(4)?

B. Whether the expression "any backward class of citizens" in Article 16(4) means "socially and educationally backward classes" as it is in Article 15(4)?

c C. What is meant by the expression "any backward class of citizens ....... not adequately represented in the Services under the State " in Article 16(4)?

D. Whether Article 16(4) permits reservation of appointments or D posts at the Stage of initial entry into Government Services or even in the process of promotion?

E. Whether Article 16(4) is exhaustive of the State-power to provide job-reservations?

E F. If Article 16(1) does not permit job-reservations, can protective discrimination as a compensatory measure permissible, in any other form under Article 16(1)?

G. To what extent reservations are permissible under Article 16(4)? Below 50% or to any extent? F H. When a 'backward class" has been identified, can a means-test be applied to skim-off the affluent section of the "backward class"?

I. Can poverty be the sole criterion for identifying the "backward G class' under Article 16(4).

J. ls it mandatory to provide reservations by a legislative Act or it can be done by the State in excercise of its executive power?

K. Whether the identification of 3743 castes as a "backward class" by H Manda! Commission is constitutionally valid?

INDRA SAWHNEY v. U.O.l. [KULDIP SINGH, J.] 825

A A Mr. Ram Jethmalani appearing for the State of Bihar has advanced .. an extreme argument that the 'class' under Article 16(4) means 'caste'. Mr . P.P. Rao on the other had vehemently argued that the Constitution of India, with secularism and equality of opportunity as its basic features, does not brook an argument of the type advanced by Mr. Jethmalani. According B to him caste is a closed door. It is not a path - even if it is - it is a prohibited path under the Constitution.

We may pause and have a fresh-look at the socio-political history of India prior to the independence of the country. C Caste-system in this country is sui-generis to Hindu religion. The Hindu-orthodoxy believes that an early hymn in the Rg-Veda (the Purusasukta:- 10.90) and the much later Manava Dharma Sastra (law of Manu), are the sources of the caste-system. Manu, the law-giver cites the Purusasukta as the source and justification for the caste division of his own time. Among the Aryans the priestly caste was called the Brahmans, the warriors were called the Kshatriyas, the common people divided to agricul- ture, pastoral pursuits, trade and inuustry were called the Vaishyas and the Dasas or non·Aryans and people of mix-blood were assigned the status of Shudras. The Chaturvarna - system has been gradually ·distorted in shape and meaning and has been replaced by the prevalent caste-system in Hindu society. The caste system kept a large section of people in this country outside the fold of the society who were called the untouchables. Manu required that the dwelling of the untouchables shall be outside the village - their dress, the garments of the dead - their food given to them in a F broken dish. We are proud of the fact that the Framers of the Constitution

-· have given a special place to the erstwhile untouchables under the Con- stitution. The so called untouchable-caste have been named as Scheduled Castes and Scheduled Tribes and for them reservations and other benefits have been provided under the Constitution. Even now if a Hindu- caste stakes its claim as high as that of Scheduled Ca.tes it can be included in G that category by following the procedure under the Constitution.

The caste system as projected by Manu and accepted by the Hindu society has proved to be the biggest curse for this country. The Chaturvar- na-system under the Aryans was more of an occupational order projecting H

826 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A the division of labour. Thereafter, in the words of Professor Harold A. Gould in his book "The Hindu Caste System'', the Brahmins "sacralized the occupational order, and occupationalised the sacred order". Y'ith the passage of tirr.e the caste-system become the cancer-cell of the Hindu Society. ..- B Before the invasions of the Turks and establishment of Muslim rule the caste-system had brought havoc to the social order. The Kshtriyas being the only fighters, three-fourth of the Hindu society was a mute witness to the plunder of the country by the foreigners. Mahmud Ghazni raided and looted India for seventeen times during 1000 AD to 1027 AD. In 1025 AD c Mahmud Ghazni raided the famous temple of Somanath. How he plundered the shrine is a matter of history. Thereafter between 1175 AD and 1195 AD Mahmud Ghazni invaded India several times. According to the historians one of the causes of the defeat of the Indians at the hands of Turks was the prevalent social conditions especially the caste system of Hindus. D Mr. L.P. Sharma in his book 'Ancient History of India' writes that the prevalent social conditions, practice of untouchability and division of society by the caste-system among others were the causes of defeat of Rajputs at the hands of Turks. Mr. Sharma quotes various other historians E in the following words:

"Dr. KA. Nizami, has also pointed out that the caste system weakened the Rajputs militarily bacause the responsibility of fighting was left lo a particular section of the society i.e. F the Kshatriyas. He writes, "The real cause of the defeat of the Indians lay in their social system and their invidious caste distinctions, which rendered the whole military or- ganisation rickety and weak. Caste taboos and discrimina- .... tions killed all sense of unity-social or political." Dr. K.S. Lal also writes that, "It was very much easy for the Muslims G to get traitors from a society which was so unjustly divided. This was one of the reasons why all important cities of north India were lost to the invader (Muhammed of Gbur) within fifteen years." Dr. R.C. Majumdar writes, "No public upheaval greets the foreigners, nor are any organised ef- H forts made to stop their progress. Like a paralysed body,

INDRA SAWHNEY 1·. U.0.1. [KULDIP SINGH. lj 827

the Indian people helplessly look on, while the conquerors A march on their corpse."

The Hindus did not learn lesson from the invasions of the Turks and continued to perpetuate the caste system. In the middle of 15th century major part of north India including Delhi came to be occupied by the Afghans of Lodi. Ultmately Babar establised the Moghul rule in India in B

1526. After the Mughals the Britishers came and ruled this country till 1947.

This country remained under shackles of slavery for over one thousand years. The reason for our inability to fight the foreign-rule was C the social de-generation of India because of the caste-system. To rule this country it was not necessary to divide the people, the caste-system con- veyed the message "Divided we are - come and rule us1'.

It was only in the later part of 19th century that the national move- - '-. ment took birth in this counrty. With the advent of the 20th century D Mahatma Gandhi, Jawahar Lal Nehru alongwith other leaders infused national and secular spirit amongst the people of India. For the first time in the history of India caste, creed and religion were forgotten and people came together under one banner to fight the British rule. The caste-system was thrown to the winds and people from all walks of life marched together E under the slogan of 'Quit-India'. It was not the Kshatriyas alone who were the freedom fighters - whole of the country fought for freedom. It was the unity and the integrity of the people of India which brought freedom to them after thousand years of slavery. The Constitution of India was drafted in the background of the freedom struggle. F Secularism is the basic feature of the Indian Constitution. It envisages a chohesive, unified and casteless society. The Constitution has completely obliterated the caste-system and has assured equality before law. Refer- ence to caste under Articles 15(2) and 16(2) is only to obliterate it. The prohibition on the ground of caste is total, the mandate is that never again G inthfo counlry caste shall raise its head. Even access to shops on the ground of caste. is prohibited. The progress of India has been from casteism to egnlitarianism-from feudalism I.a freedom.

The caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly head in various forms. Caste H

828 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A possess a serious threat to the secularism and as a consequence to the integrity of the country. Those who do nut learn from the events of history are doomed to suffer again. It is, therefore, of utmost importance for the people of India to adhere in letter and spirit to the Constitmion which has moulded this country into a sovereign, socialist, secular democratic ,. republic and has promised to secure to all its citizens justice, social B economic and political, equality of status and of opportunity.

Caste and class are different etymologically. When you talk of caste you never mean class or the vice-versa. Caste is an iron- frame into which people keep on falling by birth. M. Weber in his book 'The Religion of C India' has described India as the land of 'the most inviolable organisation by birth'. Except the aura of caste there may not be any common thread among the caste-fellows to give them the characteristic of a class. On the other hand a class is a homogeneous group which must have some live and visible common traits and attributes. D Professor Andre Beteille, Department of Sociology, University of Delhi in his book "The Backward Cla::ses in Contemporary India" has succinctly brought out the distinction ·between 'caste' and 'class' in the following words:-

E "Whichever way we look at it, a class is an aggregate of individuals (or, at best, of households), and, as such, quite different from a caste which is an enduring group. This

F distinction between an aggregate of individuals and an enduring group is of fundamental significance to the sociologist and I suspect, to the jurist as well. A class derives the character it has by virtue of the characteristics of its individual members. In the case of caste, on the other - hand, it is the group that stamps the individual with its own characteristics. There are some affiliations which an in- dividual may change, including that of his class; he cannot change his caste. At least in principle a caste remains the same caste even when a majority of its individual members change there occupation, or their income, or even their relation to the means of production; it would be absurd from the sociological point of view to think of a class in this way. A caste is a grouping sui generis, very different from

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, l.] 829

a class, particularly when we define class in terms of income or occupation. 11

Article 16(2) of the Constitution of India in clear terms states that "no citizen shal~ on grounds only of religion, race, caste, sex descent, place ·of birth, residence or any of them, be ineligible for, or descriminated against in respect of, any employment or office under the Slate." In Jux- B taposition Article 16(4) states that "nothing in this Article shall prevent the state from making any provisions for the reservations of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State". On a bare reading of the two sub-clauses of Article 16 it is obvious_ that c the Constitution forbids classification on the ground of caste. No backward class can, therefore, be identified on the basis of caste.

We may refer to some of the judgments of this Court on the subject.

In R. Chitralekha & Anr. v. State of Mysore & Ors., [1964) 6 SCR 368, D this Court observed as under:-

"The important factor to be noticed in Art. 15(4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and Scheduled Tribes. Though it may be suggested that the wider expression "classes" is used in cl.(4) of Art. 15 as there are communities without caste, if the intention was to equate classes with castes, nothing prevented the makers of the Constitution from using the expression "backward classes or castes". The juxtaposition of the ex- 11 pression "backward classes" and Scheduled Castes" in Art. 15(4) also leads to a reasonable inference that the expres- sion nclassesn is-not synonymous with castes .......This inter- pretation will carry out the intention of the Constitution G expressed in the aforesaid Articles ....... If we interpret the expression "classes11 as "castes", the object of the Constitu- tion will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those 1

who really deserve.' This anomaly will not arise if, without H

830 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A equating caste with class, caste is taken as one of the .... considerations to ascertain whether person belongs to a backward class or not. On the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate proce- dure laid down by the Constitution ........ But what we intend B 11 to emphasize is that under no circumstance a class" can be equated to a "caste", though the caste of an individual or a group or individual may be considered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a g;Oven situation caste is excluded in ascertaining a class within'the meaning c of Art.15(4) of the Constitution "It does not vitiate the classification if it satisfied other tests."

''"rhe expression 'classes of citizens' indicates a homo- geneous section of the people who are grouped together H because of certain likeliness and coinmon traits and who

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 831

are identifiable by some common attributes. The A homogeneity of the class of citizens is social and education- al backwardness. Neither caste nor religion not place of birth will be the uniform element of common attributes to make them a class of citizens."

Finally in Kumari K.S. Jayasree & Anr. v. The State of Kera/a & Anr., B [1977] 1 SCR 194, this Court held as under:-

"It is not necessary to remember ·that special provision is contemplated for classes of citizens and not for individual citizens as such, and so though the caste of the group of citizens may be relevant, its importance should not be c exaggerated. If the classification is based solely on caste of the citizer.s, it may not be logical. Social backwardness is the result of poverty to a very large extent. Caste and poverty are both relevant for determining the backwardness." D It is, thus, obvious that this Court has firmly held that 'class' under Article 16{4) cannot mean 'caste'. Chitralekha's case is an authority on the point that caste can be totally excluded while identifying a 'backward class'. This Court in Pradip Tandon's case has held that caste cannot be the uniform element of common attributes to make it a class. E Secular feature of the Constitution is its basic structure. Hinduism, from which the caste-system flows, is not the only religion in India. Caste is an anathema to Muslims, Christians, Sikhs, Buddhists and Jains. Even Arya Smajis, Brahma Smajis, Lingyats and various other denominations in this country do not believe in caste-system. If all these religions have tO F co-exist in India - can 'class' under Article 16{4) mean 'caste'? Can a caste -( be given a gloss of a 'class'? Can even the process of identifying a 'class' begin and end with 'caste'? One may interpret the Constitution from any angle the answer to these questions has to be in the negative. To say that in practice caste-system is being followed by Muslims, Christians, Sikhs and G Buddhists in this country, is to be oblivious to the basic tenets of these religions. The prophets of these religions fought against casteism and founded these religions. Imputing ca;te-system in any form to these religions is impious and sacrilegious. This Court in M.R. Ba/aji & Ors. v.State of Mysore, [1963] Supp. 1 SCR 439, held as under:- H

832 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A ".......... :~esides, if the caste of the group of citizens was made the sole basis for determining the social backward- ness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise caste in the conventional sense known to Hindu society. How is one going to decide whether Mus- B llins, Christians or Jains, or even Lingayats are socially backward or not? The test of castes would be inapplicable to those groups."

I, therefore, hold that 'class' under Article 16(4) cannot be read as C 'caste'. I further hold that castes cannot be adopted as collectivities for the purpose of identifying the "backward class" under Article 16(4). I entirely agree with the reasoning and conclusions reached by R.M. Sahai, J. to the effect that occupation (plus income or otherwise) or any other secular collectivity can be the basis for the identification of "Backward classes". Caste-collectivity is unconstitutional and as such not permitted D B

The expression "--any backward class of citizens---" in Article 16( 4) of the Constitution as understood till - date means 'socially and education- E ally backward class'. In Janki Prasad Parimoo & Ors. etc. etc. v. State of Jammu & Kashmir, [1973] 3 SCR 236, Palekar, J. observed as under:-

"Article 15(4) speaks about "socially and educationally backward classes of citizens". While Article 16(4) speaks only of "any backward class of citizens". However, it is now • " F settled that the expression "backward class of citizens" in Article 16(4) means the same thing as the expression "any socially and educationally backward classes of citizens" in Article 15(4)" .

. Mr. N .A. Palkiwala contended that the above quoted assumption by G Palekar, J. was without any basis and wholly unjustified. According to him it was not settled by any judgment of this Court that the two expressions in Article 15(4) and 16(4) mean the same thing. Far from being "settled", no judgment of this Court had even suggested prior to 1973 that the expressions in the two Articles meant the same thing. He further contended H that unfortunately, in subsequent cases it was not pointed out to this Court

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 833

that the assumption of Palekar, J. was not correct and the womg assump- A tion of the learned Judge passed as correct. According to him an erroneous assumption, even by a judge of this Court, cannot and does not make the law. This Court iu M.R. Balaji & Ors. v. State of Mysore, (1963) Supp. 1 SCR 439, speaking through Gajendra Gadkar, J. observed as under:-

"Therefore, what is true iu regard to Art. 15(4) is equally B true iu regard to Art. 16(4). There can be no doubt that { the Constitutiou-makers assumed, as they were entitled to, that while makiug adequate reservation under Art. 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by c elimiuatiug general competition in a large field and by creating wide-spread di.satisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reser- vation made under Art.16(4), beyond the permissible and D legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasise that Art. 15( 4) is an enabling provision; it does not impose an obligation, but merely leaves it to the dis- cretion of the appropriate government to take suitable action, if necessary.' 1 E

Although in Ba/aji's case this Court observed "what is true in regard to Article 15(4) is equally true in regard to 16(4)" but this was entirely in different context. In the said case reservatigµ, made in the educational ' S institutions under Article 15(4) were challenged on the ground that the same were void being violative of Articles 15(1) and 29{2) of the Constitu- tion. In the above quoted observations this Court indicated that the reser- vations made under Article 16{4) can also be challenged on the same or similar grounds as the reservations under Article 15{4) of the Constitution of India. This Court did not ·examine the question as to whether the expression "backward class of citizens" in Article 16(4) means the same thing as the expression "any socially and educationally backward classes of citizens" under Article 15{4).

Articles 340 and 16(4) were in the original Constitution. Article 15{4) was inserted a year later by the Constitution First Amendment Act, 1951. H

834 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A Article 340 refers to "socially and educationally backward classes". The Framers of the Constitution did not, however, use the expression "socially and educationally backward" in Article 16(4). T~e definition of 'backward classes' as socially and educationally backward in Article 340, may have given rise to the assumption that it was not necessary to re-define the expression 'backward class' in Article 16(4). Be that as it may the fact B remains that there is no reasoned judgment of this Court holding that the two expressions mean the same thing.

The same Constituent Assembly, which drafted the original Constitu- tion, drafted Article 15(4) and brought it into the Constitution by way of C Constitution First Amendment Act, 1951. Article 340 defining 'backward classes' was already in the original constitution but in spite of that the Constituent Assembly defined the 'backward classes' for the purposes of Article 15(4) as "socially and educationally backward". It was, therefore, not the intention of the Framers of the Constitution to follow the definition D given in Article 340, where ever the expression 'backward class' occurs in the Constitution. On the other hand it is plausible to assume that wherever the Framer of the Constitution wanted the 'backward classes' to be defined as "socially and educationally backward", they did so, leaving Article 16(4) to be interpreted in its context.

E Articles 340 and 15(4) are part of the same Constitutional-Scheme. Socially and educationally backward classes may be identified by a com- mission appointed under Article 340 and the said commission- after inves- tigation - may make recommendations, including the sanctioning of grants, for the uplift of the backward classes. Article 15(4) makes it possible to implement the recommendations of the commission and for that purpose permits protective discrimination by the State. Since there is identity of purpose between the two Article the 'backward class' in the context of these Article has been defined identically. But that is not true of Articles 15(4) and 16(4). When these two Articles of Constitution in juxtaposition enacted in consecutive years - use markedly different phraseology, well established canons of interpretation dictate that such meanings should be assigned to the words as are indicated by the difference in phraseology. Article 16(4) has different purpose than Article 15(4). The subject matter of Article 16(4) is the service under the State. It is a special provision enabling the State to make any provision for the reservation of appoint-

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.) 835

ments or posts in favour of the backward section of any class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. The expression "backward" in the context of Article 16(4) is r,ntirely different than the expression "socially and educa- tionally backward class" in Article 15(4). Under Article 16(4) the backward class has to be culled-out from amongst the classes which are not adequate- B ly represented in the State Services. Any species of backwardness is relevant in the context of Article 16(4). By contrast, any special provisions to be made under Article 15(4) - e.g. grants out of the public exchequer - can only be made for "socially and educationally backward classes". What is to be identified under Article 16(4) is not the "backward class" but a 11 c class of citizens 11 which is inadequately represented in the State-services. On the other hand it is the "backward class" which is to be identified under Article 15(4). When the two classes to be idenified to the two articles are different the question of giving them the same meaning does not arise.

Constituent Assembly Debates Volume 7 (1948-1949) pages 684 to D 702 contains the speeches of stalwarts like R.M. Nalavade, Dr. Dharma Prakash, Chandrika Ram, V.I. Muniswamy Pillai, T. Channiah, Santanu Kumar Das, H.J. Khandakar, Mohd. Ismail Sahib, Hukum Singh, K.M. Munshi, T.T. Krishnanichari, H.V. Kaman! and Dr. B.R. Ambedkar on the draft Article 10(3) [corresponding to Article 16(4)]. In a nut-shell the discussion projected the following view-points:- E

(1) The original draft Article 10(3) did not contain the word 'backward'. The original Article only contained the expression "any class of citizens". The word "backward" was inserted by the Drafting Committee at a later stage. F

(2) The opinion of the members of the Constituent Assembly was . that the word "backward" is vague, has not been defined and is liable to different interpretations. It was even suggested that ultimately the Supreme Court would interpret the Same. Mr. T.T. Krishnamchari even stated in lighther-tone that the loose drafting of the chapter on fundamental rights G would be a paradise for the lawyers.

(3) Not a single member including Dr. Ambedkar gave even a suggestion that "backward class" in the said Article meant "socially and educationally backward". H

836 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A (4) The purpose of Article 10(3) according to Dr. Ambedkar was that "there must at the same time be a provision made for the entry of certain communities which have so far been outside the Administra- tion .......... that there shall be reservations in favour of certain communities v:hich have not so far haci a proper "look-in" so to say into the Administra- tion.11 B (5) According to Dr. Ambedkar the said Article was enacted to safe- guard two things namely the principle of equality of opportunity and to make provision for the entry of certain communities which have so far been outside the Administration. Dr. Ambedkar further stated:- c "Unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word ''backward" which, I admit, did not originally find a place in the fundamental rights in the way in which it was passed by this Assembly".

The reading of the Constituent Assembly Debates makes it clear that the only object of enacting Article 16(4) was to give representation to the classes of citizens who are inadequately represented in the services of the State. The word "backward" was inserted later on only to reduce the num- ber of such classes who are inadequately represented in the services of the State. The intention of th~ Framers of the Constitution, gathered from the Constituent Assembly Debates, leaves no manner of doubt that the two F "classes" to be identified in the two articles are different and as such the expressions used in the two articles carmot mean the same. Article 16(4) enables the State to make reservations for any backward section of a class which is inadequately represented in the services of the State. Almost every member who spoke on the draft Article 10(3) in the Constituent Assembly G complained that the word "backward" in the said Article was vague and required to be defined but in spite of that. Dr. Ambedkar in his final reply did not say that the word "backward" meant "socially and educationally backward", rather he gave the explanation, quoted above which supports the reasoning that the word "backward" was inserted in Article 16(4) to H identify the backward section of any class of citizens which is not adequate-

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, l.J 837

ly represented in the State-Services and for no other purpose. A 11 I, therefore, hold that the expression 11 backward class of citizens under Article 16( 4) does not mean the same thing as the expression ''any socially and educationally backward classes of citizens" in Article 15(4). The judgments of this Court wherein it is assumed that the two expressions in Articles 15(4) and 16(4) mean the same thing do not lay down correct B law and are overruled to such extent.

c Over a period of four decades this Court under a mistaken view read the expression "any backward class of citizens" in Article 16(4) to mean the c same as ''backward classes of citizens" in Article 15(4). Having held that the two Article operate in different fields, the crucial question which falls for consideration is what is meant by the expression "Any backward class of citizens ...... not adequately represented in the services under the State" in Article 16(4). D A laymen's look at Article 16( 4) gathers the impression that the reservation under the said Article is permissible for the backward classes of citizens who are not adequately represented in the services under the State. But on closer scrutiny and examination it is clear that the reserva- tions under Ar•;cle 16(4) are provided for classes of citizens which are not E " adequately represented in the State Services. The original draft Article 10(3) (corresponding to Article 16(4)] was as under:-

"10(3) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour.of any class of citizens who, in the opinion of the State, are not adequately represented in the services under the State."

Reading the original draft Article 10(3) leaves no manner of doubt that the manifest intention of the Framers of the Constitution was to provide reservation for those classes of citizens who are not adequately represented in the State services. It is common knowledge that during the British the State services were packed from amongst the persons who were on the right side of the regime. Mass of the Indian people who were active in the freedom struggle were kept out of State services. Article 16(4) was H

838 SUPREME COURT REPORTS 1!992\ SUPP. 2 S.C.R.

A enacted with the sole purpose of giving representation to the classes of citizens who are not adequately represented therein. The sine qua non for providing reservation is the inadequate representation of the class con- cerned in the State services.

The word "backward" was inserted in the draft Article 10(3) by the B Drafting Committee before the draft was finalised. The insertion of the word "backward" at a later stage did not change the intention with which the original draft Article 10(3) was brought into existence. Fortunately, for the people of this country, there are lengthy deliberations in the Con- stituent Assembly Debates which show the purpose and the object of c adding the word "backward" in the draft Article 10(3). Dr. Ambedkar in his speech before the Constituent Assembly gave the object and purpose of enacting original draft Article 10(3) and also gave elaborate reasons for inserting the word "backward" in the said Article. The said speech is reproduced hereunder:- D "Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the ad- ministration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of oppor- tunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. If honourable Members will bear these facts in mind - the three prin- ciples, we had to reconoile, - they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the ad- H ministration which has now - for historical reasons - been

INDRA SAWI-!NEY v. U.OJ. [KULDIP SINGH, J.] 839

controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have .not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the c total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of op- D portunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If E honourable Members understand this postilion that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far respresentation in the State, then, I am sure they will agree F that unless you use some such qualifying phrase as "back- ward11 the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing, of the rule will remain. That I think, if I may say so, is the justification why the Drafing Committee under~ook on its own shoulders the responsibility of introducing the word "back- G ward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly." (Constituent Assembly Debates, Vol. 7, 1948- 49 pages 701-702). H

840 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A Dr. Ambedkar stated in clear terms that draft Article 10(3) now Article 16( 4) was brought in by the framers of the Constitution to provide 11 reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration." He nowhere stated that the reservations were meant for backward classes. According to him, the Article was enacted with the object of providing reservation to those classes B of citizens who are not adequately represented in the State- Services. Dr. Ambedkar further elaborated the point when he stated "the administration which has now - for historical reasons - been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services". Dr. C Ambedkar was not referring to backward or non-backward communities, he was only referring to the communities which were dominating the public services and those which were not permitted to enter the said services. While making it clear that the reservations are meant for those classes of citizens who are inadequately represented in the State-Services, Dr. Am- D bedkar visualised that conceding in full the demand of such communities, reserving majority of the seats for them and leaving minority of the seats unreserved, would render the guarantee under Article 16(1) nugatory. He illustrated the point by giving figures and stated that a safeguard was to be provided so that majority of the appointments/posts in the State-services are not consumed in the process of reservation. It was for that purpose, according to Dr. Ambedkar, the expression "backward" was inserted in the draft Article 10(3). The object of adding the word "backward" was only to reduce the number of claimants for the reserve posts. Instead of the whole class having inadequate representation in the State-services only the back- ward section of that class is made eligible for the reserve posts. In a nutshell, the reservation under Article 16(4) is not meant for backward classes but for backward sections of the classes which are not adequately represented in the State-services. There may be a class which is inade- quately represented in the State-services and it may be backward as a whole, like the Scheduled Castes and the Scheduled Tribes. Such a class as a whole is eligible for the reserve posts. G

"Not adequately represented in the services under the State" is the only test for the identification of a class under Article 16(4). Thereafter the 'Backward class' has to be culled-out from out of the classes which H satisfy the test of inadequacy.

INDRA SAWHNEY v. U.O.l. [KULDIP SINGH, J.] 841

• Under the Constitution the "backward class" which has been iden- A tified for preferential treatment is the "socially and educationally backward" class. The Constitutional-scheme is explicit. Articles 340 and 15( 4) make it clear that wherever the Constitution intended to provide special compen- satory treatment for the "backward classes" they have been defined as 'socially and educationally backward'. Article 16(4) is not in line with B Articles 340 and 15(4). Article 16( 4) does not provide job-reservations for the backward classes. That is why the expression "socially and educationally backward" has not been used therein. The classes of citizens to be iden- tified under Article 16(4) are those who are not adequately represented in the services under the State. c Examine it from another angle. If the job-reservations under Article 16(4) are meant for "any backward class" then the expression "..not ade- quately represented .. " has to be read in relation to the said class. Can it be done? ls it possible to classify the backward classes into those who are adequately represented in the State-services and those who are not? Can D a class which is adequately represented in the State-services be considered backward? Negative is the answer to all these questions. A class which is adequately represented in the State-services cannot be considered a back- ward class. A class may not be backward even if it has inadequate repre- sentation in the State-services but once it secures adequate representation E in the State-services it no longer remains backward. It is not possible to read the expression "not adequately represented" in Article 16(4) in elation to "any backward class". If you do so then the said expression is rendered redundant. To make every word of Article 16(4) meaningful and workable the said expression can only be read in relation to "class of citizens". F

Yet another way to examine. Scheduled Castes and Scheduled tribes are a 'class' by themselves and the Constitution permits protective dis- crimination to compensate them. Reservation of seats in the House of People and the Legislative Assemblies have been provided for them. Article 335 is special provision for taking into consideration their claims in G the appointments to State-services. Had there been an intention to provide job- reservations in favour of weaker sections of society or for the 'socially and educationally backward classes' then scheduled castes and scheduled tribes would have been the first to be provided for by specific mention in Article 16(4). It is idle to say that the expression 'backward class of citizens' H

842 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A would include them, Article 15(4) uses the expression ".... any special provision for advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes". Similar!y Article 46 provides ''The State shall promote ...... weaker soction of the people, and, in particular, of the scheduled castes and scheduled tribes .....". Thus where ever in the Constitution special protection has been B provided for socially and educationally backward classes the scheduled castes and scheduled tribes have been specifically mentioned alongwith. Article 16(4) does not give protection to either of the two, it only provides for those who are inadequately represented in the State services. If the 'scheduled castes and scheduled tribes' and "socially and educationally c backward classes" qualify the test of inadequacy they are eligible for the reserved seats under Article 16(4). The scheduled castes and scheduled tribes being the weakest of the weak per-se satisfy the test.

The condition precedent for a class to get benefit under Article 16(4) D is not its backwardness but its inadequacy in State-services. Once inade- quacy is established and the classes on that test are identified then the backward sections of those classes become eligible to the benefit of reser- vation. Classes, which are inadequately represented, can be identified by occupation, economic criterion, family income or from political sufferers, border areas, backward areas, communities kept out of State-services by the British or by any other method which the State may adopt. Once a class which is inadequately represented, is identified it is only the backward section of that class which is eligible for job-reservations. Backward section can be culled-out by adopting a means test, or on the basis of social, educational or economic backwardness. Once the classes are identified there can be no difficulty for the State to find out the backward-parts of those classes.

Manda! has identified 52% population of this country as backward. 22% have already been identified as Scheduled Castes and Scheduled Tribes. In a country with a population of 8.50 million people - 74% of which is backward - job-reservation can hardly be the source of reducing social and economic disparities in the society. Even the Manda! Report has characterised the job-reservations as "Palliatives". The Framers of the Constitution - with secularism, egalitarianism, integrity and unity as their avowed objects - could not have permitted horizontal division of the country into backward and non-backward for the sake of job-reservations.

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 843

I, therefore, hold that Article 16(4) permits reservation of appoint- A ments/posts in favour of classes of citizens which in the opinion of the State are not adequately represented in the services under the State. Once such classes are identified then the reserve posts are offered to the backward sections of those classes.

B Before parting with the subject I may say that the successive Govern- ments, whether in the States or at the Centre, have been re-miss in the discharge of their obligations, under the Constitution, towards the poor and backward people of the country. Job-reservations as a dole, has been the vote-catching platter. Neither the job-reservations nor the reservation of seats in the educational institutions are of material help. Unless illiteracy c and poverty are removed, the backward classes cannot be benefited by the reservations alone. Affirmative-Action Programme on war footing is needed to uplift the backwards. Liberal grants and subsidised schemes under Article 340.read with Articles 15(4) and 46 are needed to remove illiteracy and poverty. Housing, sanitation and other necessities of life are to be provided. Illiteracy is the root cause of backwardness. "Free and compulsory education" is nowher' within reach even 45 years after the independence. The legislations enabling free education are only on paper. A poor father, whose chaild is earning and contributing towards the family income, may not send the child to school even if the education is free. The State may consider compensating the father for the loss in income due to child's stopping work for going to school. It is not for this Court to suggest what the Government should do, we only say that the State has not done what it is required to do under the Constitution. Job-reservation is not the answer to the problem. Prof. Andre Beteille in his book (supra) has summed up the issue in the following words:- F

"What has gone wrong with our thinking on the backward r classes is that we have allowed the problem to be reduced largely to that of job-reservation. The problems of the backward classes are too varied, too large and too acute to G be solved by job-reservation alone. The point is not that job-reservation has contributed so little to the solution of these problems but, rather, that it has diverted attention from the masses of Harijans and Adivasis who are too poor and too lowly even to be candidates for the jobs that are reserved in their names. Job- reservation can attend only H

844 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A to the problems of middle class Harijans and Adivasis: the overwhelming majority of Adivasis and Harijans, like the majority of the Indian people, are outside this class and will remain outside it for the next several generations. Today, job reservation is less a way of solving age-old problems than one of buying peace for the moment. It B would be foolish to blame only the government for wanting to buy peace in a country in which everyone wants to buy peace. It would be foolish also to recommend an intran- sigent attitude to a government which has neither the will to impost its power nor the imagination to think of alter- natives. But unless it is able to offer to something better to c the backward classes than it has done so far, reservation will continue to bedevil it... .. In assessing any scheme of reservations today, we have to keep in mind the distinction between those schemes that are directed towards advanc- ing social and economic equality, and those that are D directed towards maintaining a balance of power. Reser- vations for the Scheduled Castes and Scheduled Tribes are, for all their limitations, directed basically towards the goal of greater equality overall. Reservations for the Other Backward Classes and for religious minorities, whatever advantages they may have, are directed basically towards E a balance of power. The formar are in tune with the spirit of the Constitution; the latter must lead sooner or later to what Justice Gajendragadkar has called a 'fraud on the Constitution'."

D F The next question for consideration is whether Article 16(4) provides reservation of appointments or posts at the stage of initial entry to Govern- ment services or even in the process of promotion. As at present the question is not res-integra. A Constitution-Bench of this Court, in The G General Manager, Southern Railway v. Rangachari, [1962] 2 SCR 586, by a majority of three to two, has held that promotion to a selection post is covered by Article 16(4) of the Constitution of India. Rangachari's case has been followed by this Court in State of Punjanb v. Hirata/ & Ors., [1971] 3 S.C.R. 267, and Akhil Bharatitya Soshit Karamchari Sangh (Railway) v. H Union of India & Ors., [1981] 2 S.C.R. 185. This Court has also referred to

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 845

Rangachari's case in various other judgments. The reasoning of the majority A in Rangachari's case has, however, been followed in the subsequent judg- ments of this Court without adding any further reason. Mr. Venugopal and Ms. Shyamla Pappu, learned counsel for the petitioners have contended that majority judgment in Rangachari's case does not lay-down correct law.

The point in dispute in Rangachari's case was "is promotion to a B selecion post which is included in Article 16(1) and (2) covered by Article 16( 4) or is it not?" The majority in Rangachari's case interpreted Articles 16(1), 16(2) and 16(4) as under:

(1) The matters relating to employment must include all matters in C relation to employment both prior and subsequent to the appointment which are incidental to the employment and form part of the terms and conditions of such employment. Thus promotion to selection posts is included both under Article 16(1) and (2).

(2) Article 16(4) does not cover the entire field covered by Article D 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and (2) do not fall within the mischief of Article 16(4). For instance the conditions of service relating to employment such as salary, increment, gratuity, pension and the age of superannuation are matters relating to employment and as such they do not form the subject matter of Article 16(4).

(3) Both "appointments" and "posts" to which the operative part of Article 16(4) refers to and in respect of which the power to make reser- vation has been conferred on the State must necessarily be appointments and posts in the service. The word "posts" in Article 16( 4) cannot mean ex-cadre posts in the context.

(4) The condition precedent for the exercise of the powers conferred by Article 16( 4) is the inadequate representation of any backward class in the State services. The inadequacy may be numerical or qualitative. In the context the experssion "adequately represented11 imposts considerations of G 11 "size" as well as values", numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It would not be reasonable to hold that the inadeqacy of repre- sentation can and must be cured only by reserving a proportionately higher percentage of appointments at th~ initial stage. In a given case the State H

846 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A may well take the view that a certain percentage of selection posts should also be reserved.

(5) The word "posts" under Article 16(4) includes seclection posts and as such reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which B may be filled by promotion thereafter.

The first three findings of the maionty in Rangachari's case reproduced above are unexceptionable, however, findings 4 and 5, with utmost respect, do not flow from the plain language of Article 16(4) of the Constitution of India. c There is no doubt that the backward classes should not only have adequate representation in the lowest cadres of services but they should also aspire to secure adequate representation in the higher services as well. Article 16(4) permits reservation for backward classes by way of direct D recruitment to any of the cadres in the State services. Reservation can be made in direct recruitment to any cadre or service from Class-IV to Class-I of the State services. The majority in Rangachari's case has read in Article 16(4), what is not there, to support the element of qualitative repre- sentation.

E The reservation permissible under Article 16(4) can only be "in favour of any backward class of citizens" and not for individuals. Article 16(1) guarantees a right to an individual citizens whereas Article 16(4) permits protective discrimination in favour of a class. It is, therefore, mandatory that the opportunity to compete for the reserve posts has to be given to a class and not to the individuals. When direct recruitment to a service is made the 'backward class' as a whole is given an opportunity to be considered for the reserve posts. Every member of the said class has a right to compete. But that is not true of the process of promotion. The backward class as a collectivity is nowhere in the picture; only the in- dividuals, who have already entered the servic~ against reserve-posts, are considered. In the higher echelons of State services - cadre strength being small - there may be very few or even a single 'backward class' candidate to be considered for promotion tci the reserve post. An individual citizen's right guaranteed under Article 16(1) can only be curtailed by providing reservations for a 'backward class' and not for backward individuals. The H promotional posts are not offered to the backward class. Only the in-

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 847

dividuals are benefited. The object, context and the ·plain language of A Article 16(4) make it clear that the job-reservation can be done only in the direct recruitment and not when the higher posts are filled by way of promotion.

Examine from another angle. Article 16(4) provides for reservation of appointments or posts. Promotion is an incident of service .which comes B after appointment. 'Appointment' simpliciter means initial appointment to a service. Even the majority in Rangachari's case did not dispute this proposition of law. But interpreting the word "posts" to include selection posts it has been held that reservation can be made in the initial appoint- ments as well as in regard to selection posts to be filled thereafter. With C respect, it is not possible to construe the word "posts" in the manner the majority judgment in Rangachari's case has done. The expression "reserva- tion of ......... posts in favour of any backward class of citizens" only means that the posts in any cadre or service can be reserved by the State Government. It is not possible to read in these lines the permissibility of reservation even in the process of promotion. This is the only interpretation which can be given in the context and also in conformity with the service jurisprudence.

It has been rightly held in Rangachari's case that Article 16( 4) does not cover the entire field covered by Article 16(1) and (2). The conditions of service which are matters relating to employment are protected by the doctrine of equality of opportunity and do not form the subject matter of Article 16(4). It is settled proposition of law that right to promotion is a condition of service. Once a person is appointed he is governed by the conditions of service applicable thereto. Appointment and conditions of service are two separate incidents of service. Conditions of service ex- clusively come within the expression "matters relating to employment" ._.., and _._, are convered by Article 16(1) and not by 16(4). When all otherconditions . of service fall out-side the purview of Article 16(4) and are exclusively covered by Article 16(1) then where is the justification to bring promotion within Article 16(4) by giving strained-meaning to the expression 'posts'. G The only conclusion by reading Article 16(1), 16(2) and 16(4) which can be drawn is that all conditions of service including promotion are protected under Articles 16(1) and (2). Article 16(4) makes a departure only to the extent that it permits the State Government to make any provision for the reservation of appointments or posts at the initial stage of appointment and H

848 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A not in the process of promotion.

Constitution of India aims at equality of status and opportunity for all citiznes including those who are socially, economiclly and educationally backward. If members of backward classes can maintain minimum neces- . ~

. sary requirement of administrative efficiency not only representation but B 'also preference in the shape of reservation may be given to them to achieve ,.. the goal of equality enshrined under the Constitution. Article 16(4) is a special provision for reservation of appointments and posts for them in Government services to secure their adequate representation. The entry of backward class candidates to the State services through an easier ladder is, therefore, within the concept of equality. When two persons one belong- ing to the backward class and another to the general category enter the same service through their respective channels then they are brought at par in the cadre of the service. A backward class entrant cannot be given less privileges because he has entered through easier-ladder and similarly a general class candidate cannot claim better rights because he has come through a tougher-ladder. After entering the service through their respec- tive sources they are placed on equal footing and thereafter there cannot be any discrimination in the matter of promotion. Both must be treated equally in the matters of employment after they have been recruited to the service. Any further reservation for the backward class candidate in the process of promotion is not protected by Article 16(4) and would be violative of Article 16(1).

Although there is no factual material before us but it would not be hypothetical to assume that the reservation in promotion - based on or roster points - can lead to various anomalies such as the person getting the benefit of the reservation may jump over the heads of serveral of bis seniors not only in his basic cadre but even in the higher cadres to which he is promoted out of turn. Even otherwise when once a member of the back- ward class has entered service via reserve post it would not be fair to keep on providing him easier ladders to climb the higher rnngs of the State G services in preference to the general category. Instead of reserving the higher posts for in-service members of the backward class the same should be filled by direct recruitment so that those members of backward class who are not in the State services may get an opportunity to enter the same.

H For the reasons indicated above I hold that the interpretation given

.. INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 849

by the majority in Rangachari's case to Article 16( 4), to the effect that it A permits reservations in the process of promotion, is not permissible and as such cannot be sustained. Rangachari's case to that extent is over-ruled. I hold that Article 16(4) permits reservation of appointments or posts in favour of any backward class of citizens only at the initial stage of entry into the State services. Article 16(4) does not permit reservation either to B " the selection posts or in any other manner in the process of promotion.

Article 16(1) provides equality of opportunity for all citizens in matters relating to State-services. Equals have to be treated equally C whereas the unequals ought not to be treated equally. For effective im- plem.entation of the right guaranteed under Article 16( 1) classification is permissible. Such classification has to be reasonable having regard ts> the object of the right. Article 16(4) is another facet of Article 16(1). It exclusively provides for reservation which is one of the forms of classifica- D tion. Article 16(4) being a special provision regarding reservation it com- pletely takes away such classification from the purview of Article 16(1). Thus the State power to provide job reservations is wholly exhausted under Article 16( 4). No reservation of any kind is permissible under Article 16(1). Article 16(4) completely overrides Article 16(1) in the matter of job-reser- vations. E

Article 16(4) thus exclusively deals with reservation and it cannot be invoked for any other form of classification. Article 16(1), however, permits protective discrimination, short of reservation, in the matters relating to employment in the State-services. On these issues I entirely agree and adopt the reasoning and the conclusions reached by R.M. Sahai, J. and hold as under:-

1. Article 16(1) and 16(4) operate in the-same field.

2. Article 16(4) is exhaustive of the State-power to provide reservations in State-Services.

3. Protective discrimination, short of resefvations, which satisfy the tests of reasonableness, is .permitted under Ar- ticle 16(1). H

850 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

. · · I have carefully read the reasoning and the conclusions reached by . R.M. Sahai, J. on this issue. Agreeing with him I hold as hold:-

(i) that the reservation under Article 16(4) must remain B · below 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitution- ally invalid.

(ii) It is for the State to adopt the methodolgy of providing reservations below 50%. The State may provide the said c reservation in respect of the substantive vacancies arising in a year or in the cadre or service. It would be pemussible to carry forward the reserve vacancies of one year to the next year. It is reiierated that the vacancies reserved in a year including those which are carried forward shall not · D exceed50%.

(iii) No reservation of any kind can be made for any class or category whether .backward or non-backward under .. Article 16(1). E H

The protective discrimination iii the shape of job-reservations has to be programmed in such a manner that the most deserving section of the backward class is benefited. Means-test ensures such a result. The process F of identifying backward class can not be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the members of the class may have individually crossed the barriers of backWardness but while identifying the class they lllay have come within the collectivity. It is often seen that comparatively rich persons in the backward class-though they may not have G •acquired any higher level of education-are .able_ to move in the society without being discriminated socially. The members of the backward class are differentiated into superior and inferior. The discrimination which was practiced on them by the superior class is in turn practiced by the affluent members of the backward class on the poorer members ·of the said class. ·H The benefits of special privileges like job-reservations are mostly chewed

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 851

up by the richer or more affluent sections of the backward classes and the poorer and the really backward sections among them keep on getting poorer and more backwad. It is only at the lowest level of the backward class where the standards of deprivation and the extent of backwardness may be uniformed. The jobs are so very few in comparison to the popula- tion of the backward classes that it is difficult to give them adequate representation in the State-services. It is, therefore, necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Economic ceiling to cut off the backward class for the purpose of job-reservations is necessary to benefit the needy-sections of the class. I therefore, hold that means test is imperative to skim-off the affluent sections of the backward classes. c I

Whether a group of citizens living below poverty line or under proverty-conditions can be considered a backward class under Article 16(4)? In other words can a class of citizens be identified as backward solely on the basis of economic criterion? Emphatic yes, is my answer.

Poverty is the culprit - cause of all kinds of backwardness. A poor man has no money. He lacks ordinary means of subsistence. Indigence keeps him away from education. Poverty breeds backwardness all around the class into which i~ strikes. It invariably results in social, economic and educational backwardness. It is difficult to per~eive on what reasoning one can say that a class of citizens living under poverty-conditions is not a backward class under Article 16(4). The main 'reason advanced in this respect is that social backwardness being the mandatory criterion for the identification of backward class under Article 16(4), poverty alone cannot be the basis for backwardness in relation to Article 16(4). The other reason advanced is that in this country except for a small percentage of the population, the people are generally poor. The argument is that reservation for all is reservation for none. It is necessary to examine the two reasons on the anvil of logic. G This Court, over a period of four decades, has been interpreting the expression "backward class11 in 11Article 16(4)'1 to mean nsocially and educa- tionally backward11 on the mistaken assumption that the expression 11 any backward class of citizens" in Article 16(4) means the same thing as "socially and educationally backward classes" in Article 15(4). H

,_ 852 SUPREME COURT REPORTS [1992] SUPP. 'l S.C.R.

A Based on elaborate reasoning I have held in part of this judgment that the expression "any backward class of citizens" in Article 16(4) cannot be confined to "socially and educationally backward classes". The concept of"any backward class of citizens" in Article 16(4) is much wider than the "backward classes" defined under Article 15(4). It is not correct to say that social backwardness is an essential characteristic of the 'backward class' B under Article 16(4). The object of Article 16(4), as held by me in part of this judgment, is to provide job-reservations for the backward sections of those classes of citizens which are not adequately represented in the State-services. In the context of Article 16( 4) the economic criterion is essentially relevant. On the interpretation of Article 16(4) as given by me C in parts and of this judgment, social backwardness is not the sine qua non for being a "backward class" under Article 16(4).

Even if it is assumed that a backward class under Article 16(4) means socially backward, any class of citizens living below poverty line would amply qualify to be a 'backward class'. Poverty has a direct nexus to social backwardness. It is an essential and dominant characteristic of poverty. A rich belonging to backward caste - depending upon his disposition - may be or may not be socially backward, but a poor Brahmin struggling for his livelihood invariably suffers from social backwardness. The reality of present-day life is that the economic standards confer social status on individuals. A poor person, however honest, has no social status around him whereas a rich smuggler moves in a high society. No statistics can hide the fa~t that there are millions of people, who belong to the socalled elite castes, are as poor and often a great deal poorer than a very large proportion of the backward classes. It is a fallacy to think that a person, though earning thousands of rupees or holding higher posts is still back- ward simply because he happens to belong to a particular caste or com- munity whereas millions of people living below poverty line are forward because they were born in some other caste, or communities. Poverty never discriminates, it chooses its victims from all religions, castes and creeds. The pavement dwellers and the slum dwellers, belonging to different castes and religions, have a common thread of poverty around them. Are they not the backward classes envisaged under Article 16(4)? Poverty binds them together as a class. Classes of citizens living in chronic-cramping poverty are per-1e socially backward. Poverty runs into generations. It may be result of the social or economic inequality of the past. During the British regime several communities who fought the Britishers and those who actively

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 853

participated in the freedom struggle, were deliberately kept below the poverty line. There are vast areas in India, like Kalahandi in Orissa, which are perennially poverty-stricken. By and large poverty in this country is a historical factor. Looked from any angle it is not possible to hold that the citizens of India who are living under poverty conditions or below poverty line are not socially backward. It would be doing violence to the object, purpose and the language of Article 16(4) to say that the poor of the country are not eligible for job reservations under the said Article.

Simply because the bulk of the population of this country is poor and there may be a large number of claimants for the reserved- jobs that is no ground to deny the poor their right under Article 16(4). This reasoning will apply to the other backward classes with much more force. Manda! has identified 52% of the population as backward. Apart from that 22% are scheduled castes and scheduled tribes. Those who are canvassing reserva- tions for 74% of the so called backward classes have no basis whatsoever to say that 40% poor of the country be denied the benefit of job reserva- tions. The poor can be classified on the basis of income, occupation, conditions of living. such as slum dwellers, pavement dwellers etc. and priorities worked out. They can be operationally defined, categorised, sub-categorised and thereafter the backward sections can be identified for the purposes of Article 16(4). It is high time that we leave the dogmatic approach of making reservation in public services on the basis of caste as E a symbol of social backwardness. We must adopt a practical measure to confining it only to low income groups of people having unremunerative occupations whose talents and abilities are subdued under the weight of poverty. I, therefore, hold that a backward class for the purposes of Article 16(4) can be identified solely on the basis of economic criteria. F J

This question has been examined by Brother Judges and they have held that the reservations can be provided by the Parliament, State Legis- latures, statutory rules as well as by way of Executive Instructions issued G by the Central Government and the State Governments from time to time. The Executive Instructions can be issued only when there are no statutory provisions on the subject. Executive Instructions can also be issued to supplement the statutory provisions when those provisions are silent on the subject of reservations: These propositions of law are unexceptionable and H

854 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A I reiterate the same. I, however, make it clear that any Executive Instruc- tion [issued under Articles 16(4), 73 or 162] providing reservations, which goes contrary to statutory provisions or the rules under Article 309 or any other statutory rules, shall not be operative to the extent it is contrary to the statutory provisions/rules.

Legal aspects arising out of Article 16(4) have been discussed and decided. Finally we have to examine the process of identification of the backward classes and test the same at the anvil of Article 16(4) as inter- C preted by us. Manda! Commission was set up on January 1, 1979 under Article 340 to identify the classes for the purposes of Article 16(4). The Commission identified 3743 backward castes and submitted its report on December 31, 1980. No action was taken on the Manda! Report by the successive governments for a decade. The Manda! report was finally lifted from the Morgue by the government of the day which accepted the report and issued Memorandum dated August 13, 1990 providing reservations for 3743 backward castes identified by the Manda! Commission. Later on the successor government amended the reservation - policy by the Memoran- dum dated September 25,1991. These Memoranda have been reproduced in the judgments proposed by brother Judges. Both the Memoranda are based on the Manda! Report. The reservations provided under the two Memoranda are to be extended to 3743 castes identified by the Manda! Commission. It is, therefore, necessary to find out whether the backward classes to which reservations under the Memoranda are being extended, have been constitutionally and validly identified. I do not agree with the theory - apparently without logic - that the Memoranda can be adjudicated de-hors Manda! Report. Elaborate arguments were addressed before us challenging the validity of Manda! Report by Mis Palkhiwala, Venugopal, Shyamala Pappu and other learned counsel appearing for the petitioners. Agreeing with the learned c:mnsel, I hold that the identification of 3743 castes as the 'beneficiary-clas.i' for job reservations under Article 16(4), is wholly unconstitutional, invalid and cannot be acted upon. My reasons for holding so are as under :

(i) The terms of reference require the Commission "to determine the criteria for defining the socially and educa- H tionally backward classes". Assume that Manda! has done

INDRA SAWHNEY v. U.0.1. [KULDIP SINGH, J.] 855

so. The reference and the Mandal Commission's investiga- A tion is based on the legal fallcy that the expression "back- ward class of citizens11 means the same thing :"5 11 socially and educationally backward classes of citizens" in Article 15(4). That is why the Commission was asked to identify socially and educationally backward classes. We have held that two expressions in Article 16(4) and 15(4) do not mean B the same thing. The classes to be identified under Article 16(4) cannot be confined only to social and educational backwardness. The definition therein is much wider and is not limited as under Article 15(4). It is thus, evident that the identification of the "backward classes" under Article c 16(4) cannot be based only on the crite'ria of social and educational backwardness. Other classes which could have been identified on the basis of occupation, economic stand- ards, environments, backward area residence, etc. etc. have been left out of consideration. The identification done by D Manda! is thus violative of Article 16(4) and as such cannot be sustained.

(ii) It has been held by me that the backward classes for the purpose of Article 16(4) are the backward sections of the classes who are inadequately represented in the State- E services. Admittedly, this exercise was not done. Mandal identified the castes on the criteria of social and education- al backwardness.

(iii) The Terms of Reference further required the Com- F mission 'to examine the desirability or otherwise of making 1

provision for the reservation of appointments or tests ......... .in public services". This most vital part of the Terms of Reference was wholly ignored by the Commis- sion. Before making its recommendations the Commission was bound, by the Terms of Reference, to determine the G desirability or otherwise of such reservations. The Com- mission did not at all investigate this essential part of the Terms of Reference.

(iv) Manda! has not done any survey to find out as to H

856 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A whether 3743 castes which according to him are the back- ward classes, under Article 16(4), had inadequate repre- sentation in the State services. There is no material on the record to show that 3743 castes identified by Mandal are not adequately represented in the State services. The con- ditions of inadequacy is a conditions precedent under B Article 16(4) of the Constitution. This having not been established, the identification of the so called ''backward classes", is wholly unconstitutional and inoperative.

(v) Para 12.7 of the report indicates that the list of back- c ward castes was prepared from the following sources:-

1. Socio-educational field survey,

2. Census report of 1961;

3. Personal knowledge gained through extensive touring and D from the evidence; and

4. Lists of other backward classes notified by various State Governments.

The so called "socio-educational field survey", was an eye-wash. Only E two villages and one urban block in each district of the country was taken into consideration. According to the petitioners only .06% of the total villages in the country were surveyed. Mr. Venugopal relied on a chart showing the sources from which the list of castes was prepared by the Mandal Commission. The contents of chart were not disputed before us by the Union of India. Mr. Venugopal poited out that out of 3743 castes only 406 were subjected to the socio-educational field survey. To be precise the chart shows that only 10.85% castes were subjected to survey and the remaining castes were picked up from other sources. The Commission set up for the purposes of identifying backward classes is under an obligation to conduct cornprchensive survey. A backward class, identified on the sole test of caste and that also with only 10.85% socio-educational survey, cannot be constitutionally valid under Article 16(4).

Large number of castes were picked up by the Mandal Commission from the State lists. It was illustrated before us that out of 260 castes identified from the Union Territory of Pondichhery only 14 were subjected

INDRA SAWHNEY v. U.0.1. (KULDIP SINGH, J.] 857

to socio-educational survey. One was identified on personal assessment of the Commission and the remaining 245 castes were picJced up from the State list. These facts are not denied by the Union of India in the affidavit filed in writ petition 930/90. Similarly large number of castes were taken from the lists of other backward classes operatn;g in the States; It was wholly illegal for the Commission to adopt the State lists without any investigation and survey. It is not disputed that no Commission was ever set-up in Pondicherry to identify the backward classes .. There is nothing in the Manda! report to show that the State lists which were adopted were ever prepared as a result of any survey, investigation or scrutiny. Manda! Report in paras 2.63 and 2.64 specifically states that Haryana, Himachal Pradesh, Assam, Pondicherry, Rajasthan, Orissa, Meghalaya and Delhi C have notified lists of Other Backward Classes without their being any enquiry into their conditions. In para 2.65 it is mentioned that Andaman and Nicobar, Arunachal Pradesh, Chandigarh, Dadri and Nagar Havel~ Goa, Daman and Diu, Lakshadweep, Madhya Pradesh, Manipur, Mizoram, Nagaland, Sikkim, Tripura and West Bengal have never prepared a list of D OBCS. If the State lists were to be declared as Other Backward Classes by the Central Government then no Commission under Article 340 was re- quired - an Administrator could .do the job. When 90% of the castes selected were not subjected to the soci J-educatinal survey it is inipermis- sible to treat the said castes as backward classes. . E 1961 censvs was also taken as a source for preparing the list of backward castes. There is nothing on the record iii show as to why Manda!. relied on 1%1 census when the 1971 census was available. A statement filed by Mr. Venugopal after examining the government records shows that the castes were also picked up from the Kai<~ Kalelkar Commission Report. F In para 1.13 Manda! condemns Kaka Kalelkar's Report, even otherwise the said report was rejected by the Government of India in 1955 but still Manda! adopts castes from foe said Report.

It is, thus, obvious that hardly any investigation was done by the Manda! Commission to find out the backward classes for the purposes of G Article 16(4). A collection of so called backward castes by a clerical-act based on drawing-room investigation cannot be the backward classes en- visaged under Article 16(4). If the Castes enlisted by Manda! are permitted to avail the benefit of job-reservations, thereby depriving half the country's population of its right under Article 16(1) the result would be nothing but H

858 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A a fraud on the Constitution.

(vi) The Manda! report virtually re-writes Article 16(4) by substitut- ing caste for class. The caste has been made the sole and exclusive test for determining the backward classes. Every other test-economic or non- economic,has been wholly rejected. Para 1.21 of Manda! report states "the B substitution of caste by economic tests will amount to ignoring the genesis of social backwardness in the Indian societ}''. Paras 11.5 and 11.25 of the Manda! report indicate that the caste was taken as a collectivity for the purposes of socio-educational survey. The "indicators" for determining social and educational backwardness were also applied to the castes alone. c Every single piece of evidence and other material adverted to by the Commission was only for the purpose of determining whether a caste was backward. There was no investigation at all to find out whether a member or family in the caste was backward. The "indicators" invoked to determine backwardness were invariably applied to the castes and not to the in- D dividuals. What emerges is that in the first instance only a caste was taken as a collectivity. Thereafter no individual or a family of that caste was subjected to the "indicators". Only the castes were tested through the "indicators" and the result obtained. Thus the Caste has been made the sole, paramount, overriding and decisive factor. The methodology based on caste alone is unconstitutional as it violates Articles 16(2) and 16(4) of E the Constitution of India.